IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150011931 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150011931 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150011931 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests award of the Purple Heart for an incident that occurred on 9 August 1969 in Vietnam. 2. The applicant states: a. He believes that due to his in-transit status on the above date that the Army failed to submit him for a Purple Heart during this time. As his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) will verify, he was drafted on 17 February 1969 and after completing basic training at Fort Knox, KY, and advanced individual training at Fort Polk, LA, he was sent to the Republic of Vietnam on 7 August 1969. He went through the Replacement Station and was assigned to the 9th Infantry Division and sent to the 9th Division's main base camp at Dong Tam, Vietnam for additional basic training. He would be in-transit in Dong Tam for this training before being assigned to his final duty station at Camp Scott, Tan Tru, where his records were being sent. b. He was at Dong Tam for only a couple of days. He was issued his M-16 rifle and qualified with it. He was issued some equipment there and got some training regarding what Vietnam was like in the Mekong Delta which was different from any other area in Vietnam. The 9th Infantry Division operations area was well known for booby traps and therefore they needed to learn about them and avoid being blown up by them. There were a number of different types of booby traps in Vietnam. Punji pits were very basic inexpensive but effective traps meant to injury or kill Americans. These Punji pits were usually made out of sharpened bamboo sticks or stakes that were meant to impale feet, legs, arms, or even bodies depending on their size. They are also meant to pass along serious infections from these wounds. Sometimes nails were used in these punji pits rather than bamboo. Along with these punji traps were hand grenades with tripwires. Also 105 or 155 rounds were put up in trees with trip wires on the ground. These explosives would be set off with a trip wire and when stepped on the wire would pull out the ring and then they would blow up. Often near the explosive booby trap there would be punji pits so if you avoided one you might hit the other. c. They learned what these booby traps and trip wires looked like and how they worked. They were trained on how to try to avoid stepping on them to avoid being blown up. Avoiding the trip wire was not the only way to survive this explosion. A hand grenade has a spoon on it with a spring under tension under the spoon. The trip wire is attached to the ring holding the spoon in place. When the trip wire is stepped on the ring is pulled out and the spoon flies up because of the spring tension and there is a striker that hits the hand grenade fuse which then ignites. The fuse burns down which takes a certain amount of seconds and that sets off the detonator which makes the hand grenade explode. This explosion sends out pieces of metal from the grenade housing called shrapnel, which hits the Soldier's body and can injury or kill them. The spoon hitting the fuse makes a very distinctive sound that one can learn to listen for when walking down paths. The force of the grenade explosion blows up and out in a V shape which means if a Soldier can get down quick enough in the few seconds that the fuse is burning down to the detonator; the Soldier can get under the force of the blast. It might save him from being hit, injured, or killed by the blast. d. They got the basics for this information in the classroom, but to learn about how to apply this information when walking down paths one needs practice. One needs to walk the path and see what it is like. They had a couple of training sergeants there and they told them that they would take them outside the base camp and let them walk on a real Vietnamese trail. On this trail, they had set up smoke grenades with trip wires. The smoke grenade when the striker hits the fuse sounds exactly the same as a real hand grenade. They were to look for and see the trip wires and try to avoid stepping on those trip wires. However, if anyone was to hit a smoke booby trap wire then they were to listen to that sound of the striker hitting the fuse and igniting it makes and get down before the smoke grenade started to smoke which would indicate an explosion in a real hand grenade. There were a large number of people in this class. Some people would go on with him to Camp Scott and others would go onto other camps under the 9th Division. It appeared that the 9th Division did this in-transit training for everyone going to anywhere in the 9th Division forward camps like Tan Tru, Tan An, and Bear Cat. He does not remember hearing of any other forward camp doing this training that they were being given in Dong Tam. e. With him in this training class were Private First Class (PFC) A-------, PFC G-------, PFC E-----, and PFC B------, who would go on to Camp Scott, Tan Tru and be witnesses of this event whose names he did know. The other witnesses included the sergeants running the class and two lieutenants and other privates; he does not know any of their names. The two sergeants running this class took them outside the wire beyond the last bunker, which was occupied at the time, to a trail that was outside of camp. He did notice at the time that the trail being used for this training, appeared to be muddy and wet yet it had not rained that day. As they all started down the trail and people started pointing out trip wires hooked to smokes and they appeared to be finding these wires. Suddenly he heard the pop of a striker hitting a fuse from a booby trapped smoke that had not been found and he did as he had been trained to do and try to get down below the blast. He went down on his right knee first, and then he was going to go flat on the ground. As his right knee hit the ground he felt a sharp penetrating pain under his knee cap. He could feel something hard scrape along the bottom of his knee cap. This pain stopped him from falling forward as he had planned. He pulled his knee back up and found that he had hit a board with several new shiny nails on it, one of which had impaled him right under the right knee cap. He stood up to find that he had knelt down on a board with nails in it that had been buried in a mud covered hole that could not be seen before he put his knee into it. He told one of the training sergeants in charge of the class of his injury and pointed out the half mud buried board with nails on it. He told him that they (meaning the Army) "would not put that board there to injure one of our own." "Looks like the V.C. from V.C island left that there" is what he said. f. The sergeant took him back through the outer perimeter wire to the inside of the camp to the last bunker that was occupied and they called the aid station to have someone come and pick him up. He was taken to the Dong Tam first aid station and there he met the doctor in charge whose name he does not remember. He asked him what had happened and he told him he got a nail stuck under his knee cap in training on the trip wire course that they thought the VC had set up. He asked him how long he had been "in-country" and he said 2-3 days. He didn't like that fact and told him that since he had not been in Vietnam very long he had not had a chance to build up any immunity to the diseases in Vietnam and therefore with this type of injury he stood a very good chance of getting an infection and losing his leg and maybe his life. He told him he would have to really cut him open really deep and clean out the wound real good to try and prevent him from getting an infection and losing his leg. He operated on him, disinfecting the wound, stitched him up, and gave him antibiotics to take. g. The doctor told him to see his doctor at the new base camp when he got there. He was told not to get his knee wet or dirty, and not to go out to the field on any combat missions until his knee healed. He was given a prescription for antibiotics and a profile of no field duty by this doctor in Dong Tam and there should be a record of this in his file and the operation should be in there too along with the aid station log. When he returned to his in-transit class, he found out that after the trip wire exercise they were supposed to learn how to cross a "blue" (a river). They had lots of rivers in Vietnam in the Mekong Delta and if a person does not want to drown, that person better learn how to cross them. They did have Soldiers drown in the Mekong Delta. It seems that during their practice river crossing the two lieutenants went first. As soon as they were in the water, they were shot at from "VC Island." Luckily, no one was hurt. It seemed that the VC on "VC Island" not only knew what this trail was for but were just waiting for people to practice crossing the rivers so they could kill someone. They may have still been in training but the Viet Cong were at war. They had their trail under surveillance all along. h. Later that evening when everyone was asleep, the pain in his knee was killing him so he was awake. A good thing too because that night they had in-coming mortar rounds and when he saw and heard the first explosion, he got everyone up and out to the bunker where they spent several hours that night. The next day they were all shipped out. He and those aforementioned Soldiers went to Camp Scott, Tan Tru, and the others in class went to where ever they were assigned to go. At Tan Tru, he saw the medics at the aid station and they made sure he was on a profile of no field duty until his knee healed. He had no clean up duty that might get his knee wet or dirty. He was given more antibiotic, and assigned jobs around base camp for a couple of months until his knee healed and the doctors were sure it was not infected. Since he was only in-transit in Dong Tam and the two sergeants only had him for a class even though they probably thought that his punji nail experience was due to enemy action, no one wrote him up for a Purple Heart. They probably left it for the command he was going to write up. He was also under no command unit at Dong Tam. At Tan Tru, his new command, probably thought that if anyone was going to write him up for a Purple Heart it should be Dong Tam because it happened there. It was not for his current command to do. Additionally, he never pushed anyone at the time to even see what he needed to do to get his Purple Heart. Therefore, he was never written up for this incident which he feels is deserving of a Purple Heart i. The criteria for a Purple Heart is in any action with an opposing armed force of a foreign country in which the Armed Force of the United States are or have been engaged. He meets this first criterion. He was in a country that we were at war with and there was no safe place to be that you could not be injured or killed by the enemy. Even though they were in training at the time; the VC enemy on VC Island and later those who mortared the camp were quite willing to kill any of them. Even though they were not engaging the enemy, the enemy was engaging them. (1) The punji nail pit that he hit was buried under mud. This was an intentional act. If it had been put there as part of the training exercise it would not have been buried. It would have been left out to show that a person needs to watch where they go down when a trip wire is hit there might be a second trap. And it would have been placed far enough away not to injury anyone. This was not the case. This was not done by Americans. (2) No American would have intentionally buried a board with nails on it to hurt another American. The question is then who would and why? The only answer is the Viet Cong. They were at war with the Americans. Killing or injuring Americans is part of what they did. And what better propaganda could they have than to have someone 2 days in country already hurt from a booby trap. This act would set fear in the hearts of all the rest of the new Soldiers there. They would think "boy, I have 363 Days to go in Vietnam and already someone hurt. Am I next?" (3) How long was this board with nails buried? This was a board with brand new nails in it. Under mud and water, the nails would rust very quickly in Vietnam, but they were new and shiny. This means this board with nails was intentionally planted there by someone a short time before he found it with the intent to hurt an American Soldier. Part of the proof of this is that there was mud and water on the trail even though it had not rained. "VC Island" is a short swim from this trail. Being wet from their swim the Viet Cong left water on the trail and their wetness and maybe urine helped them make the mud that they used to bury this board with nails-a punji pit. The new nails also points out that this was not just a piece of wood with nails that had been dropped years before. (4) The 9th Division trained all the division Soldiers from all camps under the 9th Division in-transit course in Dong Tam. That means this has been going on for a long time. Since "VC Island" is close to where this trail is located; it is easily observed from VC Island. The VC were well aware of the training that goes on there on the trail and when it goes on. Part of that evidence is in the fact that the VC were lying in wait for the two lieutenants in this class to cross the river and attempt to shoot them. They were just waiting to shoot at them. (5) There was no evidence of building anywhere in this area or anywhere else that he had seen in Dong Tam. Therefore, this was not a piece of building wood left behind. Beside this was not what would look like a piece of building wood with nails in each corner. It had all kinds of nails in the board just everywhere hoping that someone would land flat and get nine nails in them rather than one. It was not long after this time that Dong Tam was given to the ARVN Army so any building projects probably had stopped long before this time. (6) There is the fact that the bunkers just inside of Dong Tam were occupied in the daytime. This was a large camp with all kinds of barracks. Did they need to have people also sleep in the outer bunkers? He does not think so. They never had their bunkers occupied in the day time in Tan Tru. Could this indicate that these bunkers were needed to be occupied due to the fact that there was a lot of enemy activity during the day time? j. In summary, no American would have buried this nail-covered piece of wood in this place. No building was going on in the area where this piece of wood with nails on it could have been accidently dropped. The enemy, through years of prior knowledge, knew what this trail was used for. They could have and did easily swim over and planted this nail covered wood board as part of their fight against America in and attempt to injure a new American Soldier as a propaganda move to dishearten new Soldiers. Also observing and waiting all this time so they should try and shoot and kill the first two Soldiers (lieutenants) that practiced crossing the river in full view of VC Island. It is very reasonable to believe that his injury in this case was due directly to the action of the enemy of the United States-the Viet Cong. Part of the criteria for a Purple Heart is injury caused by enemy-placed mine or trap. The buried nails on a board was certainly that-a trap. No different from the traps that he would see on and off for the next 13 months 13 days of his tour in Vietnam. The other question is that this happened in training. This is true but the training was outside of camp and under the view of the enemy. It was caused beyond a reasonable doubt by the enemy. In addition, that night after training, they were mortared in base camp. If any of them were injured by one of those blasts from those mortars or killed they still would be qualified to get a Purple Heart. As far as any medical files. The Board would have to check logs from Dong Tam first aid station and Tan Tru first aid station along with his medical files. He was never given any information regarding this incident from the Army nor was he ever given any medical records regarding this incident or from his stay in the military. This is his evidence and proof to the best of his ability to remember these events as they happened in 1969. He hopes the Board considers all the facts from witnesses and what the Board finds as medical evidence in his personal medical file or maybe in medical log notes from Dong Tam or Tan Tru aid stations. He was never given any medical files that were his regarding this incident. He is providing the names of witnesses that were at the scene of this incident that he knows of. He hopes the Board considers this sufficient enough to prove his injury and validate his long awaited claim for a Purple Heart. k. He also has some additional consideration. Under the Purple Heart criterion of "as the result of an act of any hostile foreign force" he has a 20-percent hearing loss disability. It is reasonable to assume this disability to be caused by combat-related action with the Viet Cong an enemy of the United States that he was involved in and it is documented in his medical file. As part of the evidence of his direct involvement in action with the enemy, he wants the Board to refer to his awards of the Bronze Star with "V" Device along with his Air Medal and two Army Commendations. His hearing loss would be an injury that he received while in direct enemy actions. He currently wears two hearing aids and his hearing loss is increasing. Also, under the criteria of "disease not directly caused by enemy agents" and "Chemical, biological, or nuclear agents not released by the enemy" he has Agent Orange related diabetes and ischemic heart disease that led to his diabetes (awarded in 2001), stroke (1994) and heart attack (1997). These are diseases that although not directly connected to enemy agents but through the result of his efforts to fight that enemy in Vietnam. These diseases are connected to America's fight in Vietnam under wartime conditions against communist forces. 3. The applicant provides: * DD Form 214 * DD Form 215 (Correction to DD Form 214) * Criteria for award of the Purple Heart CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was inducted into the Army of the United States on 17 February 1969 and he held military occupational specialty 11B (Light Weapons Infantryman). 3. He served in Vietnam from 5 August 1969 to 19 September 1970. He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 60th Infantry Regiment, 9th Infantry Division. 4. He was honorably released from active duty on 20 September 1970. His DD Form 214, as amended by his DD Form 215, does not show award of the Purple Heart. It shows the: * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Vietnam Service Medal with one silver service star * Army Commendation Medal (1st Oak Leaf Cluster) * Bronze Star Medal with "V" Device * Air Medal * Combat Infantryman Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Automatic Rifle and Pistol Bars 5. There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart. Nothing in several typical sources shows he was wounded or injured as a result of hostile action: * Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury * His medical records are not available for review * The applicant’s name is not shown on the Vietnam casualty roster * A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any other orders for the Purple Heart pertaining to him * There are no general orders in his records for award of the Purple Heart * His records do not contain a Western Union Telegram informing his next of kin of an injury/wound or any Army Adjutant General correspondence regarding an injury REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record: a. The regulation provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * Injury caused by enemy-placed trap or mine * Injury caused by enemy-released chemical, biological, or nuclear agent * Injury caused by vehicle or aircraft accident resulting from enemy fire * Concussion injuries caused as a result of enemy-generated explosions * Mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident c. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * Trench foot or immersion foot; heat stroke; battle fatigue * Food poisoning not caused by enemy agents * Chemical, biological, or nuclear agents not released by the enemy * Disease not directly caused by enemy agents * Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * Self-inflicted wounds, except when in the heat of battle and not involving gross negligence * Post traumatic stress disorders * Airborne (for example, parachute/jump) injuries not caused by enemy action. * Hearing loss and tinnitus (for example, ringing in the ears) * Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * Abrasions and lacerations (unless of a severity to be incapacitating) * Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth); first degree burns 2. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20. This regulation further stated that the date the wound or injury occurred would also be placed in item 40. 3. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: The applicant does not meet the criteria for award of the Purple Heart: a. The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. Aside from his statement, there is no evidence he sustained an injury or evidence showing what caused the injury. His service record is void of any documentary evidence that shows he was wounded or injured as a result of hostile action. His medical records are not available for review with this case. His name is not listed on the Vietnam casualty listing. There is nothing in multiple typical sources that confirms he was wounded as a result of hostile action or that he required treatment by medical personnel. c. The applicant's awards of the Bronze Star Medal with "V" Device, Army Commendation Medal (2nd Award), and Air Medal are noted. However, when contemplating an award of this decoration, the key issue that commanders take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. d. The applicant's contentions and sincerity are not in question. However, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidentiary basis for awarding him the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011931 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011931 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2